Análisis Teórico Práctico de las Inadecuaciones Sistémicas Generales y Particulares del Sistema Penal Mexicano a la Luz Del Garantismo Jurídico: Revisión Bibliográfica

Objective of the literature review: to describe some of the debates inherent to legal garantism, specifically those that have theoretically and operationally discussed the criminal justice system according to Luigi Ferrajoli’s proposal. Structure: To facilitate the presentation of the results of this literature review, we identified three major debates:The Kantian foundations of German idealism that organize garantist doctrinal orientations, such as studying the epistemic problem of truth applied to all areas of the legal system, based on the logical reasoning carried out by the judge; the perfect syllogism, which appears in any evidentiary discovery and implies a cognitive modification of all legal operators; in other words, Ferrajoli conceives a conditio sine qua non necessary in any criminal justice system, which he identifies as the cognitive system, supported by all legal operators within the penal framework; the universal character of general and particular elements in any legal system interested in protecting the fundamental rights of the parties while respecting legal norms, allowing litigants, victims, and legal operators to access a Constitutional Democratic Rule of Law. The constitutional and neo-constitutional support of Garantism, which aims to theoretically establish a functional Rule of Law. The Rule of Law consists of levels of norms and levels of delegitimization. The Constitution functions as a parameter of rationality, justice, and legitimacy of the punitive power of the State. However, the norms are far from the operational reality of the Mexican penal system, generating a clear divergence between the constitutional model of the Rule of Law and the lack of effectiveness. The justification of the political philosophy of the penal system according to legal garantism, including various controversies around the classical garantist penal system as well as specialized discussions regarding so-called garantist systems. Specialized arguments may explain the inappropriate use of state punitive power or focus on the levels of delegitimization of state power, in addition to criticism of political activity, all while considering Luigi Ferrajoli’s significant contribution to proposing a general theory of garantism applicable to the legal framework of any penal system. Type of literature review: Taxonomic documentary. Review strategy: Key concepts, significant terms of legal garantism, linking concepts around doctrinal debates of garantism, and periodic evaluation of the state of these debates. Databases: IIJ Library (UNAM), CIDE Library, Google Scholar, CIJUREP Library. Selection criteria: Relationship between garantism and Immanuel Kant’s philosophy; relationship between political philosophy and garantism; and relationship between neo-constitutionalism, constitutionalism, and garantism.